ANTI-SEXUAL HARASSMENT ACT 2022

This Act comes into operation on a date to be appointed by the Minister by notification in the Gazette, and the Minister may appoint different dates for the coming into operation of different parts or provisions of this Act.

Act 840

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Act 840

Interpretation

is made pursuant to a complaint of sexual harassment to the Tribunal in the course of any proceedings of the Tribunal; and

is incidental to the principal object of that proceedings, and includes any directions about the conduct of that proceedings, but does not include any partial or interim order making a final determination in respect of that proceedings;

“party” means a complainant or respondent;

“respondent” means a person against whom a proceeding is commenced by the complainant;

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“Tribunal” means the Tribunal for Anti-Sexual Harassment established under section 3.

a President and a Deputy President to be appointed from amongst the members of the Judicial and Legal Service;

not less than five other members which shall comprise of—

persons who are members of or who have held office in the Judicial and Legal Service; or

not less than five other members, as may be determined by the Minister, who have knowledge of or practical experience in matters relating to sexual harassment.

Where the President is for any reason unable to perform his functions or during any period of vacancy in the office of the President, the Deputy President shall perform the functions of the President.

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The President, the Deputy President and the members of the Tribunal shall hold office for a term of three years and may be reappointed only for another term consecutively.

The President, the Deputy President or the members of the Tribunal may at any time resign his office by giving three months’

written notice to the Minister.

The Minister may at any time revoke the appointment of members of the Tribunal appointed under paragraphs (1)(b) and (c), and fill any vacancy in its membership.

The President and the Deputy President shall be paid such fixed allowances and other allowances as the Minister may determine.

The members of the Tribunal appointed under paragraphs (1)(b) and (c) shall be paid a daily sitting allowance during the sitting of the Tribunal and such lodging, travelling and subsistence allowances as the Minister may determine.

Disqualification

the person is adjudged bankrupt by a court of competent jurisdiction;

the person is certified by a qualified medical officer to be physically or mentally incapable of continuing office;

the Minister is of the opinion that the person has engaged in any paid office, commission or employment which conflicts with the duties of the person under this Act;

the person’s conduct, whether in connection with his duties as a member of the Tribunal or otherwise, has been such as to bring discredit to the Tribunal;

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the person has been convicted on, a charge in respect of—

an offence involving fraud, dishonesty or moral turpitude;

the person absents himself from three consecutive sittings of the Tribunal without leave of the President.

Secretary, officers and staff

a Secretary to the Tribunal; and

such number of other officers and staff of the Tribunal as may be necessary to carry out the functions of the Tribunal.

The complaint of sexual harassment made under subsection (1)

shall refer to sexual harassment which occurs after the coming into operation of this Act.

A complaint of sexual harassment referred to the Tribunal under this Act is subject to the Limitation Act 1953 [Act 254].

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Exclusion of jurisdiction of court

the proceedings before the court were commenced before the complaint of sexual harassment was lodged with the Tribunal;

the complaint of sexual harassment involves any conduct constituting a crime under the provisions of any written law; or

the complaint of sexual harassment before the Tribunal is withdrawn or struck out.

Where paragraph (1)(a) applies, the issues in dispute in the claim of sexual harassment to which those proceedings relate, whether as shown in the initial claim or emerging in the course of the hearing, shall not be the subject of proceedings between the same parties before the Tribunal unless the claim of sexual harassment before the court is withdrawn or struck out.

Determination of rules and procedure

The President shall cause the procedure determined under subsection (1) to be reduced into writing and published in such a manner as the President deems fit.

In conducting the proceedings under subsection (1), the Tribunal shall have the powers to—

A summons issued by the Tribunal under this section shall be served and enforced as if it were a summons issued by a court.

The Tribunal shall determine the complaint of sexual harassment on the balance of probabilities.

the President or the Deputy President appointed under paragraph 4(1)(a), or any other member of the Tribunal appointed under paragraph 4(1)(b), as a Chairperson; and

any other two of the members of the Tribunal appointed under paragraph 4(1)(c).

The panel for each sitting of the Tribunal in subsection (1)

shall comprise of at least a woman.

The Tribunal may sit in one or more sittings on such day and at such time and place as the President may determine.

If the Chairperson referred to in paragraph (1)(a) presiding over any proceedings in respect of a complaint of sexual harassment dies or becomes incapacitated, or is for any other reason unable to complete or dispose of the proceedings, the complaint of sexual harassment shall be heard and continued and presided over by any other Chairperson as determined by the President.

If any of the members of the Tribunal referred to in paragraph (1)(b) in respect of a complaint of sexual harassment dies or becomes incapacitated, or is for any other reason unable to complete or dispose of the proceedings, the President shall appoint any other member of the Tribunal to the panel to continue the proceedings.

Where the term of appointment of any Chairperson or member of the Tribunal referred to in paragraph (1)(b) expires during the pendency of any proceedings in respect of a complaint of sexual harassment, the term of his appointment shall be deemed to have been extended until the final disposal of the complaint of sexual harassment.

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Right to appear at hearing

No party shall be represented by an advocate and solicitor at a hearing unless, in the opinion of the Tribunal, the matter in question involves complex issues of law.

If one party is allowed to be represented by an advocate and solicitor under subsection (2), the other party shall also be so entitled.

Subject to subsections (1) and (2), a party who is a minor or any person under a disability may be represented by his next friend or guardian ad litem.

Where a party who is a minor or any person under a disability is represented by his next friend or guardian ad litem, the Tribunal may impose such conditions as the Tribunal considers necessary to ensure that the other party to the proceedings is not substantially disadvantaged.

Hearings to be closed

Without limiting the generality of subsection (1), in making an assessment the Tribunal shall have regard to any factors that, in the opinion of the Tribunal, are likely to impair the ability of either or both of the parties to negotiate an agreed settlement.

Where the parties reach an agreed settlement, the Tribunal shall approve and record the agreed settlement and the agreed settlement shall then take effect as if it is an award of the Tribunal.

The Tribunal shall proceed to determine the complaint of sexual harassment if—

which arose in the course of the proceedings;

which, in the opinion of the Tribunal, is of sufficient importance to merit such reference; and

the determination of which by the Tribunal raises, in the opinion of the Tribunal, sufficient doubt to merit such reference.

If the Tribunal refers any question of law under subsection (1)

for the decision of a Judge of the High Court, the Tribunal shall make its award in conformity with such decision.

For the purposes of reference to the High Court on any question of law, a Federal Counsel authorized by the Attorney General may appear on behalf of the Tribunal in any proceedings before a Judge of the High Court.

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Procedure where no provision is made

The Tribunal shall state in writing reasons for the award or dismissal of the complaint of sexual harassment together with any finding of facts that the Tribunal has noted or recommendations that the Tribunal has made in those proceedings.

Order

an order for the respondent to issue a statement of apology to the complainant as specified in the order;

if the complaint related to any act of sexual harassment which was carried out in public, an order for the respondent to publish a statement of apology to the complainant in any manner as specified in the order;

an order for the respondent to pay any compensation or damages not exceeding two hundred and fifty thousand ringgit for any loss or damage suffered by the complainant in respect of the act of sexual harassment; or

an order for the parties to attend any programme as the Tribunal thinks necessary.

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The Tribunal may make such ancillary or consequential orders or relief as may be necessary to give effect to any order made by the Tribunal.

The Tribunal may dismiss a complaint of sexual harassment which the Tribunal considers to be frivolous or vexatious.

Criminal penalty for failure to comply with award

in the case where any compensation or damages is ordered by the Tribunal, a fine which is two times the total amount of the compensation or damages, or to imprisonment for a term not exceeding two years, or to both; or

in the case where no compensation or damages is ordered by the Tribunal, a fine not exceeding ten thousand ringgit, or to imprisonment for a term not exceeding two years, or to both.

In the case of a continuing offence, the person shall, in addition to the penalties specified under subsection (1), be liable to a fine not exceeding one thousand ringgit for each day or part of a day during which the offence continues after the conviction.

Award of Tribunal to be final

subject to section 23, be final and binding on all parties to the proceedings; and

be deemed to be an order of a court and be enforced accordingly by any party to the proceedings.

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For the purposes of paragraph (1)(b), the Secretary to the

Tribunal shall send a copy of the award made by the Tribunal to the court having jurisdiction in the place to which the award relates or in the place where the award was made and the court shall cause the copy of the award to be recorded.

Challenging award on ground of serious irregularity

If there is shown to be serious irregularity affecting the award, the High Court may—

For the purposes of this section, “serious irregularity”

means an irregularity of one or more of the following kinds which the High Court considers has caused substantial injustice to the applicant:

to formulate policy or issue guidelines relating to the prevention or awareness of sexual harassment;

to promote any activity including to request any person to display any notice at any place relating to the prevention or awareness of sexual harassment;

to administer any matter relating to the prevention or awareness of sexual harassment; and

to carry out any other functions for the betterment and proper implementation of this Act.

The Administrator shall have all such powers as may be necessary for, or in connection with, or incidental to, the performance of its functions under this Act.

Without prejudice to the generality of subsection (1), the regulations may be made for—